Last week, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury released their much-anticipated final rules to strengthen the enforcement of the federal Mental Health Parity and Addiction Equity Act (MHPAEA). As highlighted by the DOL, the final rules, among other provisions, make clear that group health plans and health insurance issuers offering group or individual health insurance coverage cannot use non-quantitative treatment limits (NQTLs), such as prior authorization requirements or network adequacy, that are more restrictive than those applied for medical and surgical health benefits. It also requires plans and issuers to collect and evaluate data on NQTLs and take reasonable action to address material differences in access. In addition, under the rules, plans are required to provide meaningful benefits for covered mental health conditions such as a standard treatment or course of treatment, therapy, service, or intervention indicated by generally recognized independent standards of current medical practice.
While the rules represent a significant step forward in MHPAEA enforcement, it is important to note that the rules do not directly apply to Medicaid or the Children’s Health Insurance Program (CHIP), which has a parity enforcement structure overseen by states and the Centers for Medicare & Medicaid Services (CMS) that also unfortunately, has notable gaps and issues. (As noted in footnote 125 of the rules, “coverage offered by Medicaid managed care organizations, CHIP, and Medicaid Alternative Benefit Programs are subject to separate mental health parity regulations” (codified at 42 CFR parts 438, 440, 456, and 457)).
So where does this leave Medicaid and CHIP?
As you may remember, in September of last year, CMS released a Request for Comments on Processes for Assessing Compliance with Mental Health Parity and Addiction Equity in Medicaid and CHIP. Our response, including a call to improve NQTL reporting and oversight – such as reviewing and improving prior authorization processes in Medicaid and CHIP – can be found here. Unfortunately, CMS has yet to propose or finalize similar rules for Medicaid and CHIP. However, on the same day that the tri-agencies released their final rules related to parity for group health plans and health insurance issuers, CMS released a Request for Comments on Templates for Documenting Compliance with MHPAEA in Medicaid and CHIP. This request comes on the heels of an informational bulletin released this summer reiterating state responsibilities for managed care plan oversight and reiterating that state obligations to effectively oversee their Medicaid managed care and separate CHIP programs and comply with existing federal parity requirements as well as recently finalized access and managed care rules focused on improving access to care in Medicaid and CHIP (a full summary of those rules including implementation timeline can be found here).
According to CMS’s request for comments, the new set of draft templates and instruction guides are intended to standardize, streamline, and strengthen the process for states to demonstrate, and for CMS to determine compliance with parity requirements in coverage and delivery of state Medicaid and CHIP benefits. CMS is seeking preliminary comments on the templates and instructional guides before finalizing the tools and seeking approval from the Office of Information and Regulatory Affairs before formally issuing the templates and guides. The request for comment, along with links to the draft templates and instructional guides and specific questions for comment, can be found here. CMS is asking for comments to be submitted via email by October 29th.
